The lawyer leading the robocalls election case acknowledged Tuesday that he faces a challenge proving voters were disenfranchised without evidence that “there are ballots that aren’t in the ballot box.”

Steven Shrybman, the lawyer for eight voters who want the Federal Court to overturn the election results in six ridings, told Judge Richard Mosley that he is “up against the difficult task of proving the negative.”

But Shrybman said the evidence shows that people across the country were stopped from voting by misdirecting or harassing calls.

He urged the judge to consider the numerous complaints described in internal Elections Canada emails and others itemized in sworn statements from agency investigators that detailed alleged voter-suppression calls reported in more than 240 ridings.

“There is no loaded gun,” he admitted. “We have not been able to adduce for this court electors who didn’t vote, let alone large numbers of them.”

Instead, Shrybman said the judge should consider similar stories from voters across the country that are consistent with those in the six cases before the court.

“It’s all of a piece,” he said.

Shrybman pointed to a voter in the Quebec riding of Rivière-du-Nord — not one of the ridings at issue — who complained to Elections Canada that he received three automated calls telling him his polling station had changed and who ultimately did not vote in the May 2, 2011 election.

This complainant, whose name was redacted from court documents, is the first on the public record to say his franchise was affected by a misleading call, although an Elections Canada investigator has reported that some voters in Guelph tore up their voting cards in frustration when directed to the wrong poll.

For months — and as recently as during question period on Monday — the Conservatives have rebutted allegations about the robocalls scandal by claiming not a single person lost his or her franchise.

But to Shrybman, there is clear evidence of a countrywide effort to discourage voters.

“A person or person unknown engaged in fraudulent activities intended to affect the results of the election in the six electoral districts at issue,” Shrybman told the court.

“A direct assault has taken place on the first building block of the democratic society, the right to vote.”

To prove that, he said, it is not necessary to show who carried out fraudulent activities, merely that they took place.

“We don’t know who engaged in those activities and we are not accusing the Conservative Party of Canada of conspiring to defraud Canadian electors,” he said.

Shrybman took the judge through court documents from Elections Canada’s investigation of voter-suppression calls, starting with the investigation into the robocall that sent hundreds of voters to the wrong polling station in Guelph.

He characterized the efforts of the suspect identified as Pierre Poutine as “a clandestine and covert act to suppress the vote.”

The suspect went to great lengths to disguise his or her identity, using a disposable “burner” cellphone, untraceable credit cards and a proxy server to disguise the Internet Protocol, Shrybman said.

Given these efforts, Shrybman said there was no way for applicants to know at the time that the calls they say they received were anything but apparent mistakes.

It was only when they heard media reports in late February of this year that they realized the calls may have been part of a larger voter-suppression effort, Shrybman said.

Specifically, he referred to journalistic “sleuthing” that turned up a sworn statement filed in an Alberta court in November 2011 as the first time the public learned of alleged vote-suppression calls.

Shrybman outlined complaints from voters across the country who have reported to Elections Canada that they received live calls and robocalls that told them that their polling stations had moved when they had not.

He also reviewed information from Elections Canada emails released under access-to-information legislation that show the Conservatives were warned during the campaign that voters were receiving calls from the party directing them to the wrong polling stations.

Those emails were received by a lawyer for the Conservatives, whose name is redacted in the release, but who is believed to be Arthur Hamilton, the lawyer representing the Conservative MPs in opposing this suit.

The email was sent from Hamilton’s law firm in response to an email from Elections Canada warning about the calls. It said that “the calls being made by our candidates request the voter to confirm her or his polling location,” and asserted that the calls were not telling voters their polling stations may have changed.

Shrybman repeatedly pointed to this email as “inconsistent” with the evidence of an affidavit from an executive at the call centre firm employed by the party. Responsive Marketing Group executive Andrew Langhorne asserted that it was the party, not local candidates, making the calls.

Ottawa Citizen national affairs reporter covering government and politics on Parliament Hill. Specializing in data journalism and social-media evangelism. Suffering the wrath of political partisans since... read more 1998. Follow me on Twitter at @glen_mcgregor or email me at gmcgregor @ottawacitizen.com.View author's profile